Law and Order, part 1

In recent years, there has been a greater awareness of the dynamics of the police, especially in relation to race, but also in regards to the militarization of the police over time and perceived abuses of police authority.  Sites like CopBlock, FilmingCops, TheFreeThoughtProject and others routinely collect and display audio/video, news stories, and public records that document these incidents.  Others are a continuation of efforts going back decades, such as Radley Balko’s ‘The Agitator’ blog.  (Balko is also the author of ‘The Rise of the Warrior Cop’ (2014).)

Libertarians are not new to this discussion by any means, and there are other political groups that have weighed in on these issues for many decades, even centuries.

The response from liberals and conservatives tends to follow certain predictable patterns.  The liberal response is a familiar “more regulation, better demographic representation, federal oversight of state and local police abuses,” while the conservative response tends to either deny that a problem exists or to blame victims of abuse (either individually or collectively, or both, depending on the circumstance), or even to suggest that the police are actually too weak.  (One can easily see the parallels to attitudes towards military action, though that’s not the direct subject of this series.)

What I want to focus on in this series is the particular attitude expressed by many conservatives about the role of law, of authority, of obedience, and of order.  In brief, there are several core beliefs that can be loosely described as a ‘law and order’ mentality.

1. Without law, people would act as they saw fit.

2. This would lead to chaos.

3. We need laws. (Derived from 1 and 2)

4. Fortunately (or providentially), we are a nation of laws.

5. Law is meaningless without enforcement.

6. Enforcement requires enforcers (which means, people invested with enforcement authority).

7. Disputes of law must take place in courts.  (Derived from 1 and 2)

8. Therefore, every citizen has a duty to submit to the authority of enforcers, even in cases where the enforcers are not actually obeying the law.

There are some unstated assumptions in here, as will be obvious to most libertarians who have dealt with Hobbesian arguments.  For example, it’s assumed that having law requires having a single source of law, a single enforcer of law, and a single interpreter of law.

Note also that this argument makes no reference whatsoever to the content of the law.  It does not require that the law be just.  In fact, it is often difficult to understand the concept of an ‘unjust law’ in this view as it is almost reduced to a contradiction in terms.  Justice is viewed as that which promotes order, and since laws promote order (and are very nearly treated as the only source of order), an unjust law would be something that both promotes and detracts from order.  At best, one could talk about a ‘bad’ law or an ‘ineffective’ law.

Of course, the natural counter-examples to this idea would be familiar ones that even conservatives readily acknowledge: the Fugitive Slave Law and the Nazi Jewish regulations.  In both cases, it seems obvious that no one had a duty to obey (or enforce) those laws, and indeed, it’s easy to view those who resisted them as heroes.

This is not a very effective way of casting doubt on the ‘law and order’ mentality, though, as they tend to simply dismiss such examples as outliers that should not be used as a basis for critiquing laws in general but, rather, oppressive regimes.  Similarly, pointing to North Korea or the Stasi does not seem to cause any doubt in their minds.  Perhaps the specter of anarchy and chaos is so apparent, and the distance between present circumstances in the West and those in North Korea so great, that this does little to unsettle their position.

Alternately, one can try to defeat this approach by embracing it.  Specifically, one could argue that the way that the police operate is actually against the Constitution and not a faithful representation of its principles.  (For example:  Unfortunately, this approach requires convincing them of certain principles of Constitutional interpretation, and that may prove at least as difficult as any other approach.

Yet another method is the historical appeal, since conservatives are rhetorically wedded to the founding of the country and cannot easily dissociate themselves from the stated principles and actions of its founders.  Thus, one can show that many of the founders were, in fact, law breakers and saw no duty to comply with British law when it was deemed unjust.  In fact, it can easily be argued that the tradition of dissent and disobedience is far more American than that of compliance and obedience.  Most of the arguments listed at the beginning here are those that we see coming from the British officials at the time, not the American colonists.  And thus, the ‘law and order’ approach appears to be a Redcoat tradition, not a truly American one.

I think that can be a promising approach, but it can also be dismissed on various grounds.  Unfortunately, those grounds tend to be nativist, race-/culture-realist, or some other equally disturbing version.  The only good result of that response is that it exposes some of the underlying, unstated beliefs.  But ultimately, it tends to reduce to typical liberal-vs-conservative arguments over crime and race.

What I’m proposing to do instead of the approaches mentioned already is the following:

In Part 2, I will show that the ‘law and order’ argument is a subtle variation of the Divine Command Theory of ethics.

In Part 3, I will look at the broader category of Ethical Subjectivism, of which Divine Command Theory is an example, and what its key weaknesses are.

In Part 4, I will argue that most ‘law and order’ advocates would ordinarily reject Ethical Subjectivism and instead embrace some version of Moral Realism.

In Part 5, I will conclude by adapting the conclusions of Parts 3 and 4 to show that ‘law and order’ arguments put their advocates in a difficult position where embracing ‘order’ as an ultimate societal value is a genuine threat to the realization of other core values and beliefs that they hold and have even greater desire for society to embrace and reflect.

2 thoughts on “Law and Order, part 1”

  1. “Yet another method is the historical appeal, since conservatives are rhetorically wedded to the founding of the country and cannot easily dissociate themselves from the stated principles and actions of its founders. Thus, one can show that many of the founders were, in fact, law breakers and saw no duty to comply with British law when it was deemed unjust.”

    Well yeah, when Ron Paul was decrying illegal immigrants as lawbreakers I pointed out that his political heroes were lawbreakers.

  2. Yes, there are a lot of things about the colonists and the revered Founders that are deeply embarrassing for the law and order position. The only responses I’ve had about it seemed to go quite directly to nativist talk about how some people are naturally self-regulating. IOW, some people can get away with a revolution because, they just naturally spring back to an orderly society, whereas others will revert to some form of barbarity and social depravity unless we have constant ruthless enforcement of social order.

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